[Congressional Record Volume 169, Number 156 (Tuesday, September 26, 2023)]
[Senate]
[Pages S4683-S4684]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SENATE RESOLUTION 362--TO EXPRESS THE SENSE OF THE SENATE REGARDING THE 
CONSTITUTIONAL RIGHT OF STATE GOVERNORS TO REPEL THE DANGEROUS ONGOING 
           INVASION ACROSS THE UNITED STATES SOUTHERN BORDER

  Mr. MARSHALL submitted the following resolution; which was referred 
to the Committee on the Judiciary:

                              S. Res. 362

       Whereas, during a 2019 Democratic presidential primary 
     debate, President Biden called for ``all those people seeking 
     asylum'' to ``immediately surge to the border'';
       Whereas, during a 2019 Democratic presidential primary 
     debate, President Biden raised his hand when candidates were 
     asked if their health plans will provide coverage for illegal 
     immigrants;
       Whereas, during a 2020 Democratic presidential primary 
     debate, President Biden pledged support for ``sanctuary 
     cities'' when he stated that illegal immigrants arrested by 
     local police should not be turned over to Federal immigration 
     authorities;
       Whereas, on January 20, 2021, one of President Biden's 
     first actions as President was sending proposed legislation, 
     the U.S. Citizenship Act, to Congress, which would provide a 
     path to citizenship for an estimated 10,000,000 to 12,000,000 
     illegal immigrants who are currently residing in the United 
     States;
       Whereas, on January 20, 2021, President Biden also issued a 
     ``Proclamation on the Termination Of Emergency With Respect 
     To The Southern Border Of The United States And Redirection 
     Of Funds Diverted To Border Wall Construction'', which halted 
     construction of physical barriers along the international 
     border between the United States and Mexico, and he later 
     terminated existing border wall construction contracts and 
     failed to obligate more than $1,000,000,000 that Congress had 
     lawfully appropriated for border wall construction;
       Whereas, on January 20, 2021, President Biden also halted 
     enrollments in the Migrant Protection Protocols policy, which 
     is also known as the ``remain in Mexico'' program;
       Whereas on February 6, 2021, U.S. Secretary of State Antony 
     Blinken suspended and terminated the Asylum Cooperative 
     Agreements with the Governments of El Salvador, of Guatemala, 
     and of Honduras;
       Whereas in March 2022, the Department of Homeland Security 
     began implementing the interim final rule titled ``Procedures 
     for Credible Fear Screening and Consideration of Asylum, 
     Withholding of Removal, and CAT Protection Claims by Asylum 
     Officers'' which authorizes U.S. Citizenship and Immigration 
     Services to consider the asylum applications of individuals 
     subject to expedited removal and violates the law enacted by 
     Congress that requires asylum seekers to offer evidence to 
     persuade a judge in an immigration court;
       Whereas in August 2022, the Department of Homeland Security 
     terminated the Migrant Protection Protocols (commonly known 
     as the Remain in Mexico policy), which required aliens with 
     pending asylum claims to wait in Mexico.
       Whereas, during fiscal year 2021, U.S. Immigration and 
     Customs Enforcement executed 59,000 deportations, which 
     represents the lowest number of deportations since fiscal 
     year 2008, and fewer than \1/3\ as many deportations as the 
     number of people who were deported during fiscal year 2020, 
     and is significantly lower than the 226,000 to 410,000 
     removals that occurred every fiscal year since 2008;
       Whereas, during fiscal year 2021, U.S. Immigration and 
     Customs Enforcement--
       (1) arrested 48 percent fewer convicted criminals than had 
     been arrested during the prior fiscal year;
       (2) deported 63 percent fewer criminals than had been 
     deported in the prior fiscal year; and
       (3) issued 56 percent fewer ``detainer requests'' to local 
     authorities than had been issued in the prior fiscal year;
       Whereas, during fiscal year 2021, U.S. Customs and Border 
     Protection made more than 1,700,000 arrests of illegal 
     immigrants along the international border between the United 
     States and Mexico, which was the highest level ever recorded 
     until more than 2,300,000 illegal immigrants were arrested 
     along such border during fiscal year 2022;
       Whereas, on April 1, 2022, President Biden announced the 
     termination of a public health policy used to expel 
     potentially infected illegal immigrants during the COVID-19 
     pandemic (commonly known as ``title 42'');
       Whereas, on September 30, 2021, Department of Homeland 
     Security Secretary Alejandro Mayorkas issued a memorandum 
     titled ``Guidelines for the Enforcement of Civil Immigration 
     Law'', which stated that an alien's illegal status in the 
     United States should not be the sole basis of an enforcement 
     action and prioritized for apprehension and removal aliens 
     who are a threat to national security, public safety, or 
     border security;
       Whereas, on October 12, 2021, Secretary Mayorkas issued a 
     memorandum titled ``Worksite Enforcement: The Strategy to 
     Protect the American Labor Market, the Conditions of the 
     American Worksite, and the Dignity of the Individual'', which 
     included Department-wide guidance to cease mass worksite 
     operations, among other instructions;
       Whereas, on October 27, 2021, Secretary Mayorkas issued a 
     memorandum titled ``Guidelines for Enforcement Actions in or 
     Near Protected Areas'', which listed numerous protected areas 
     where the enforcement of Federal immigration law should not 
     occur;
       Whereas, in May 2022, U.S. Customs and Border Protection 
     arrested 239,416 illegal immigrants along the international 
     border between the United States and Mexico, which is the 
     highest number of arrests ever recorded in a single month;
       Whereas President Biden's fiscal year 2023 budget request 
     aims to shift the Department of Homeland Security's border 
     management away from enforcement and toward ``effectively 
     managing irregular migration along the Southwest border'';
       Whereas in November 2022, Texas Governor Greg Abbott--
       (1) declared a state of invasion at the southern border; 
     and
       (2) increased security at the border to protect the state 
     of Texas by invoking--
          (A) section 10 of Article I of the Constitution of the 
     United States; and
          (B) the invasion clauses in the Texas Constitution;
       Whereas in March 2023, at a hearing of the Committee on 
     Homeland Security of the House of Representatives, U.S. 
     Border Patrol Chief Raul Ortiz told lawmakers that the 
     Department of Homeland Security did not have operational 
     control of the border;
       Whereas in March 2023, at a hearing of the Committee on the 
     Judiciary of the Senate, Secretary of Homeland Security 
     Alejandro Mayorkas stated that he does not use the statutory 
     definition of operational control under section 2(b) of the 
     Secure Fence Act of 2006 (Public Law 109-367; 8 U.S.C. 1701 
     note) when asked if the Department of Homeland Security had 
     operational control of the border;
       Whereas on January 6, 2023, the Biden Administration abused 
     its parole authority under section 212(d)(5) of the 
     Immigration Nationality Act (8 U.S.C. 1182(d)(5)) to create a 
     new parole program for nationals of Cuba, Haiti, Nicaragua, 
     and Venezuela;
       Whereas on April 27, 2023, the Biden Administration further 
     abused its parole authority by creating a new family 
     reunification parole process, which grants parole to entire 
     categories of aliens rather than granting parole on a case-
     by-case basis, as required under such section 212(d)(5);
       Whereas the Biden Administration created a parole with 
     conditions policy authorizing U.S. Border Patrol agents to 
     release aliens through parole before they are given a Notice 
     to Appear or entered into removal proceedings;
       Whereas the Biden Administration has expanded the use of 
     the CBP One app, allowing tens of thousands of aliens to 
     enter the United States unlawfully to hide the mass 
     immigration surge following the termination of the order of 
     suspension issued by the Director of the Centers for Disease 
     Control and Prevention under section 362 of the Public Health 
     Service Act (42 U.S.C. 265) as a result of the public health 
     emergency relating to the COVID-19 pandemic (commonly known 
     as the ``title 42 order'');
       Whereas drug cartels are receiving an estimated 
     $13,000,000,000 each year from their human smuggling 
     operations across the southern border of the United States, 
     which represents an enormous increase from the estimated 
     $500,000,000 the drug cartels received in 2018 from such 
     operations;
       Whereas in March 2023, according to the non-detained 
     docket, an estimated 5,290,000 illegal aliens were at large 
     in the United States, including 407,983 criminal aliens;
       Whereas the estimated fiscal burden of illegal immigration 
     on taxpayers in fiscal year 2023 is estimated to be 
     $150,700,000,000, which is a massive increase from the 
     estimated fiscal burden of $116,000,000,000 during fiscal 
     year 2017. Tax payments by illegal aliens are equal to 
     approximately \1/6\ of the costs incurred by government 
     entities in the United States on their behalf;
       Whereas during fiscal year 2022, total Federal justice 
     enforcement expenditures as a result of illegal immigration 
     were $25,100,000,000 and total Federal welfare program 
     expenditures for illegal aliens were $11,600,000,000;
       Whereas in April 2023, the Biden Administration proposed a 
     plan to expand healthcare

[[Page S4684]]

     access for aliens granted deferred action pursuant to the 
     final rule submitted by the Department of Homeland Security 
     titled ``Deferred Action for Childhood Arrivals'' (87 Fed. 
     Reg. 53152 (August 30, 2022)), further encouraging illegal 
     aliens to enter the United States;
       Whereas on May 3 2023, the Office of the Inspector General 
     of the Department of Homeland Security issued a report titled 
     ``Intensifying Conditions at the Southwest Border Are 
     Negatively Impacting CBP and ICE Employees' Health and 
     Morale'';
       Whereas in June 2023, the Committee on Homeland Security of 
     the House of Representatives opened an investigation into 
     Secretary of Homeland Security Mayorkas for dereliction of 
     duty;
       Whereas in June 2023, an estimated 16,800,000 illegal 
     aliens resided in the United States, which represents an 
     increase of an estimated 16 percent during the first 2 years 
     of the Biden presidency;
       Whereas on June 30, 2023, U.S. Customs and Border 
     Protection announced the expansion of available CBP One 
     appointments to 1,450 per day;
       Whereas U.S. Customs and Border Protection has apprehended 
     illegal immigrants from Mexico, Guatemala, El Salvador, 
     Nicaragua, Cuba, Haiti, Brazil, other Central and Latin 
     American nations, Turkey, India, Russia, and other nations 
     outside of the Western Hemisphere;
       Whereas U.S. Customs and Border Patrol has apprehended 50 
     people since October 1, 2021 along the international border 
     between the United States and Mexico who are listed on the 
     Federal Bureau of Investigations' terrorist screening 
     database;
       Whereas, U.S. Customs and Border Protection arrested more 
     than 10,800 illegal aliens during fiscal year 2023 who have 
     been convicted of 1 or more crimes in the United States or 
     abroad, including--
       (1) 225 convicted sexual criminals;
       (2) 24 who were convicted of homicide or manslaughter;
       (3) 232 who were convicted of illegal weapons possession, 
     transport, or trafficking;
       (4) 644 who were convicted of burglary, robbery, larceny, 
     theft, or fraud; and
       (5) 924 who were convicted of assault, battery, or domestic 
     violence;
       Whereas, during fiscal year 2022, U.S. Customs and Border 
     Protection seized--
       (1) 14,599 pounds of fentanyl;
       (2) 1,871 pounds of heroin;
       (3) 175,410 pounds of methamphetamine;
       (4) 70,293 pounds of cocaine; and
       (5) 13,755 pounds of ketamine;
       Whereas, provisional data from the National Center for 
     Health Statistics of the Centers for Disease Control and 
     Prevention estimates that there were 107,622 drug overdose 
     deaths in the United States during 2021, an increase of 
     nearly 15 percent from the estimated 93,655 deaths in 2020, 
     with overdose deaths involving opioids increasing from an 
     estimated 70,029 in 2020 to an estimated 80,816 in 2021, and 
     overdose deaths from synthetic opioids (primarily fentanyl), 
     psychostimulants (such as methamphetamine), and cocaine also 
     increasing during 2021.
       Whereas clause 1 of section 10 of article I of the United 
     States Constitution states, in part, ``No State shall, 
     without the Consent of Congress . . . engage in War, unless 
     actually invaded, or in such imminent Danger as will not 
     admit of delay.'';
       Whereas section 4 of article IV of the United States 
     Constitution states, in part, ``The United States shall 
     guarantee to every State in this Union a Republican Form of 
     Government, and shall protect each of them against 
     Invasion'';
       Whereas, in the context of known security concerns due to a 
     lack of proper vetting processes and systems, and in 
     conjunction with how the mass unlawful movement of people 
     across the border of the United States directly empowers and 
     enriches cartels and transnational gangs, the totality of 
     such activity constitutes an invasion;
       Whereas, on October 26, 2021, Arizona State Representative 
     Jake Hoffman sent a letter to Arizona Attorney General Mark 
     Brnovich requesting a formal legal opinion determining 
     whether President Biden has violated his obligations to 
     protect Arizona from invasion under section 4 of article IV 
     of the United States Constitution; and
       Whereas, on February 7, 2022, Arizona Attorney General Mark 
     Brnovich issued a formal legal opinion, which states, in 
     part--
       (1) ``The on-the-ground violence and lawlessness at 
     Arizona's border caused by cartels and gangs is extensive, 
     well-documented, and persistent. It can satisfy the 
     definition of `actually invaded' and `invasion' under the 
     U.S. Constitution.''; and
       (2) ``Arizona retains the independent authority under the 
     State Self-Defense Clause to defend itself when actually 
     invaded.'': Now, therefore, be it
       Resolved, That the Senate finds that--
       (1) President Biden's dereliction of duty and failure to 
     take care that the laws be faithfully executed at our 
     southern border has directly put the citizens of all 50 
     States in danger and has resulted in loss of life;
       (2) the violent activity and smuggling of drugs, humans, 
     guns, and other illicit goods carried out by drug cartels and 
     transnational criminal organizations, and the crossing of the 
     international border between legal ports of entry by 
     significant numbers of individuals contrary to the laws of 
     the United States, meet the definitions of--
       (A) ``actually invaded'' under clause 3 of section 10 of 
     article I of the United States Constitution; and
       (B) ``invasion'' under section 4 of article IV of the 
     United States Constitution; and
       (3) Governors of all 50 States possess the authority and 
     power as Commander-in-Chief of their respective States to 
     repel the invasion described in paragraph (2).

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